Are You Eligible to File a Mesothelioma Lawsuit for Loss of Consortium?

Spouses of people who were negligently injured may be eligible to file their own loss of consortium claims, which we covered in an earlier post. These claims potentially compensate them for physical, mental and emotional pain they may experience as a result of their loved one’s injuries.

But there are special considerations when the injuries are caused by asbestos exposure. Specifically, the timing of both asbestos exposure and the diagnosis of an asbestos-related illness, as well as the date of the marriage impact the validity of a loss of consortium claim.

For loss of consortium claims in general, the couple must be married at the time of injury. A 2002 California case, Zwicker v. Altamont Emergency Room Physicians Medical Group, provides an example of how this legal requirement works.

Marriage at Time of Injury Required for Loss of Consortium

In March 2009, a California man went to the emergency room complaining of pain in his scrotum. After examining him, doctors told him nothing was wrong and that he could follow up with his own doctor.

The next day, the man’s pain increased and he went to another hospital. This time he was told that he had likely suffered damage to his spermatic cord. During emergency surgery, a urologist found that the cord was damaged and removed the testicle.

Over the next 11 months, three tests indicated that the man was infertile. Shortly after the last test, he got married. A couple of weeks later, he filed a medical malpractice suit against the first hospital and emergency room physicians for failing to diagnose and treat him.

The man’s bride also filed a loss of consortium claim alleging that, because of the emergency room’s negligent misdiagnosis, her husband could not impregnate her. The defendants argued that the wife could not claim loss of consortium because she knew about her husband’s fertility problems before they married. She asserted that her claim accrued after their marriage, when she found out that her husband’s infertility was permanent.

A California appeals court disagreed with the defendants and found that it did not matter when the plaintiff found out that her husband was infertile. However, the court still held that the wife did not have a valid loss of consortium claim.

The court reasoned that loss of consortium involves the “loss of certain rights and privileges . . . in the marital relationship.”

Because the right is founded on the marriage relationship, it does not exist if there is no marriage. Here, the wife’s claim was invalid because she had “no right” to consortium at the time of the injury.

In other words, she could not claim loss of consortium because she was not married to her husband at the time he was injured. In this case, the injury occurred at the time of the alleged misdiagnosis.

Different Approach for Latent Illnesses

Although Zwicker did not involve asbestos-related injuries, asbestos litigation defendants relied on it while defending themselves against loss of consortium claims. They argue that under Zwicker, loss of consortium claims are only available to asbestos plaintiffs who were married to the injured party at the time of the alleged wrongdoing.

Applying Zwicker in this manner is troublesome for plaintiffs in asbestos cases because of the long latency period for asbestos-related diseases. Practically speaking, tying the time of injury to the time of the wrongdoing means that most asbestos loss of consortium claims would fail.

For instance, it could mean that a wife whose husband was diagnosed with mesothelioma on their 30^th anniversary would be unable to bring a loss of consortium claim if he was exposed to asbestos 35 years ago, before their wedding.

Fortunately, two California appeals courts revisited Zwicker last summer and made an important distinction for asbestos cases:

• In Leonard v. Crane, John and Sandra Leonard brought asbestos personal injury and loss of consortium claims against John Crane, Inc. John Leonard was exposed to asbestos between 1958 and 1995. He married Sandra in 2001. In 2010, he was diagnosed with mesothelioma.
• In Vanhooser v. Superior Court, Frederick and Sherrell Vanhooser filed asbestos personal injury and loss of consortium claims against Henessey Industries, Inc. Frederick was exposed to asbestos while serving in the U.S. Navy during the 1960s and 1970s and also while working as an auto mechanic between 1988 and 1990. He married Sherrell in 1991 or 1992. He developed symptoms of mesothelioma in 2010 and was diagnosed the following year.

The Vanhoosers may have had their loss of consortium claims tossed if the courts had determined that their husbands’ injuries had occurred on the date of the misconduct. Both women married their husbands after they were exposed to asbestos. Under the reasoning in Zwicker, the courts could have determined that neither woman had a right to consortium because there was no marriage at the time of injury.

However, the courts in Leonard and Vanhooser held that injuries involving latent diseases should be treated differently. Zwicker involved a so-called “snapshot” tort where the injury and the misconduct occurred “almost simultaneously.”

For latent diseases like mesothelioma, the injury does not occur until the symptoms are discovered or the disease is diagnosis. Since Sandra Leonard and Sherrell Vanhooser were married to their husbands before  symptoms appeared or diagnosis, the courts held that the loss of consortium claims were valid.

It is important to remember that each state has different laws concerning loss of consortium claims. Courts in other states are not necessarily required to apply the decisions of California courts.

Also, the facts of an individual case ultimately affect the outcome. That’s why it’s always wise to speak to a qualified mesothelioma attorney about your specific case.

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